R v Day (No 2)

Case [2022] ACTSC 352

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Day (No 2)

Citation:

[2022] ACTSC 352

Hearing Date:

11 November 2022

DecisionDate:

16 December 2022

Before:

Kennett J

Decision:

See [85]–[89]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – choke, suffocate, strangle – threat to kill – contravene family violence order – convictions recorded – sentences of imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Dealing with related offences of common assault and damage property – where accused convicted of some but not all charges on the indictment – not guilty on common assault charge – guilty on damage property charge – conviction recorded and fine imposed
Legislation Cited:

Crimes Act 1900 (ACT) ss 26, 28, 30, 116

Evidence Act 2011 (ACT), s 4
Family Violence Act 2016 (ACT) s 43
Magistrates Court Act (ACT) s 90B

Supreme Court Act (ACT) ss 68D, 68E

Cases Cited:

Cheung v R [2001] HCA 67; 209 CLR 1

Degioannis v Boxx [2017] ACTSC 7
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
R v Cowling [2019] ACTSC 138
R v Van Duren [2017] ACTSC 132
R v Verdins [2007] VSVA 102; 169 A Crim R 581

R v Williams [2016] ACTSC 389

Parties:

The Queen ( Crown)

Benjamin Paul Day ( Offender)

Representation:

Counsel

D Swan ( Crown)

K Musgrove ( Offender)

Solicitors

Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Offender)

File Numbers:

SCC 1, 2 of 2022

KENNETT J:

Introduction

  1. The offender, Benjamin Paul Day, is to be sentenced for the following offences, having been found guilty of them by a jury on 9 September 2022:

(a)Two counts of choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act).

The maximum penalty is imprisonment for five years.

(b)Threat to kill, contrary to s 30 of the Crimes Act.

The maximum penalty is imprisonment for ten years.

(c)Contravene family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act).

The maximum penalty is imprisonment for five years, a penalty of $80,000 or both.

  1. I consider it to be in the interests of justice also to deal with the following two related offences that were transferred to this Court from the Magistrates Court pursuant to s 90B(3) of the Magistrates Court Act 1930 (ACT) (see s 68D(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act):

(a)Common assault, contrary to s 26 of the Crimes Act; and

(b)Damage property, contrary to s 116(3) of the Crimes Act,

(the transfer charges).

Facts

  1. It is necessary for me to find facts for the purpose of sentencing: Cheung v R [2001] HCA 67; 209 CLR 1 (Cheung). The conduct particularised as constituting the transfer charges is alleged to have occurred on the same evening as, and…

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AGLC
R v Day (No 2) [2022] ACTSC 352
Case
[2022] ACTSC 352
Decision Date

CaseChat Overview and Summary

In the matter of R v Day (No 2), the accused faced charges relating to violent conduct and property damage, with additional allegations of contravening a family violence order. The case was heard in a higher court where the defendant's sentencing and convictions were reviewed and determined. The legal issues before the court centred on the appropriate sentencing for charges of choking, suffocation, strangulation, and the threat to kill, as well as the contravention of a family violence order. Furthermore, the court needed to decide on the appropriate punishment for the related offences of common assault and property damage.

The court was tasked with considering the severity and nature of the offences, along with the defendant's criminal history and the impact of the offences on the victims. It needed to balance the need for punishment and deterrence with the principles of proportionality and rehabilitation. The court examined the evidence and submissions from both the prosecution and the defence to assess the culpability of the defendant in each charge. In determining the sentence, the court considered the aggravating and mitigating factors, including the defendant's background, the circumstances of the offences, and any relevant family violence considerations.

The court found the defendant guilty of the charges involving choking, suffocation, strangulation, and the contravention of a family violence order, recording these convictions. For these offences, the court imposed sentences of imprisonment, considering the gravity of these crimes and their impact. Regarding the related charges of common assault and damage to property, the defendant was acquitted of the common assault but found guilty of damaging property. The court recorded this conviction and imposed a fine as punishment for the property damage charge. The final orders of the court, as detailed in the judgment, included the recording of convictions and the imposition of the specified sentences and fines.

Orders

Orders of the court

See [85]–[89]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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